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CIRCULAR No.2/1998/TT-BKH OF MARCH 16, 1997 GUIDING THE ORDER AND PROCEDURES FOR GRANTING INVESTMENT PRIVILEGE CERTIFI-CATES ACCORDING TO DECREE No.7/1998/ND-CP OF JANUARY 15, 1998 OF THE GOVERNMENT DETAILING THE IMPLEMENTATION OF THE LAW ON DOMESTIC INVESTMENT PROMO-TION (AMENDED)

In furtherance of Clause 3, Article 41 of Decree No. 7/1998/ND-CP of January 15, 1998 of the Government detailing the implementation of the Law on Promotion of Domestic Investment (amended) (hereafter referred to as Decree No. 7/1998/ND-CP for short), the Ministry of Planning and Investment hereby provides the following guidance on the order and procedures for granting investment privilege certificates (hereafter abbreviated as IPCs):

I. IPC APPLICATION DOSSIERS AND THE DOSSIER-RECEIVING AGENCY

In order to be granted IPCs, the subjects governed by the Law on Domestic Investment Promotion defined in Clauses 1, 3, 4 and 5 Article 3 of Decree No. 7/1998/ND-CP shall send IPC application dossiers to the dossier-receiving agency according to the following regulations:

1. Investment projects of existing production and business establishments

1.1. The IPC application dossier:

- The application for an IPC

- The valid copy of the business registration certificate, for State enterprises, companies, private enterprises, cooperatives or unions of cooperatives or of the business license for individuals or business groups operating under Decree No. 66-HDBT of March 2, 1992 of the Council of Ministers (now the Government).

- The investment project

- The valid copy of the investment decision or the investment license granted by a competent level as prescribed in Article 7 of the Regulation on the Investment and Construction Management (issued together with Decree No. 42-CP of July 16, 1996 of the Government) and a number of articles amending and/or supplementing the Regulation on the Investment and Construction Management issued together with Decree No. 42-CP of July 16, 1996 of the Government (issued together with Decree No. 92-CP of August 23, 1997 of the Government).

1.2. The dossier-receiving agency

1.2.1. The Ministry of Planning and Investment shall receive IPC application dossiers from State enterprises, enterprises of political or socio-political organizations and professional associations which are:

- Established by the Prime Minister's decisions

- Established by decisions of the ministers, the heads of the ministerial-level agencies and agencies attached to the Government, who are assigned or authorized by the Prime Minister

1.2.2. The Planning and Investment Departments of the provinces and cities directly under the Central Government (hereafter collectively referred to as the provincial/municipal Planning and Investment Departments) where the production and business establishments are headquartered or carry out investment projects shall receive IPC application dossiers from;

- State enterprises, enterprises of political and socio-political organizations, professional associations, which are established by decisions of the president of the People's Committee of the provinces or cities directly under the Central Government (hereafter collectively referred to as the president of the provincial-level People's Committees)

- Private enterprises, limited liability companies, joint stock companies (including enterprises in Vietnam which are directly invested by overseas Vietnamese or foreigners permanently residing in Vietnam under the Law on Promotion of Domestic Investment)

- Cooperatives, unions of cooperatives

- Individuals and business groups operating under Decree No. 66-HDBT of March 2, 1992 of the Council of Ministers (now the Government).

1.2.3. The provincial-level Board of Management of Industrial Parks of the localities where the production and business establishments are headquartered or carry out investment projects shall receive IPC application dossiers from the production and business establishments stated in Point 1.2.2, Section I of this Circular that own investment projects in industrial parks.

2. Investment projects associated with the setting up of new production and business establishments

2.1. The IPC application dossiers:

- The application for an IPC

- The investment project

- The valid copy of the investment decision or the investment license granted by a competent level as prescribed in Article 7 of the Regulation on the Investment and Construction Management (issued together with Decree No. 42-CP of July 16, 1996 of the Government) and a number of articles amending and/or supplementing of the Regulation on Investment and Construction Management issued together with Decree No. 42-CP of July 16, 1996 of the Government (issued together with Decree No. 92-CP of August 23, 1997 of the Government).

2.2. The dossier-receiving agency:

The provincial/municipal Planning and Investment Department or the provincial-level Boards of Management of Industrial Parks of the localities where the production and business establishments plan to open their head offices shall receive dossiers asking for permission to set up private enterprises, limited liability companies or joint stock companies whether or not eligible for investment privileges. In case of eligibility for investment privileges the provincial/municipal Planning and Investment Departments or the provincial-level Board of Management of Industrial Parks shall receive dossiers asking for permission to set up enterprises together with IPC application dossiers.

- The provincial/municipal Planning and Investment Departments or the provincial-level Board of Management of Industrial Parks of the localities where the production and business establishments plan to open their head offices shall receive dossiers asking for permission to establish enterprises in Vietnam directly invested by overseas Vietnamese or by foreigners permanently residing in Vietnam and enterprises established jointly by Vietnamese citizens and overseas Vietnamese or foreigners permanently residing in Vietnam under the Law on Promotion of Domestic Investment together with the IPC application dossiers.

- The provincial/municipal Planning and Investment Departments of the localities where cooperatives or unions of cooperatives engaged in the business lines specified in Clause 1, Article 13, Decree No. 16-CP of February 21, 1997 of the Government on the transformation and registration of cooperatives and the organization and operation of unions of cooperatives (hereafter referred to as Decree No. 16-CP for short) plan to open their head offices shall receive these establishments' dossiers of application for business registration. In case of eligibility for investment privileges, the provincial/municipal Planning and Investment Department shall receive dossiers of application for business registration together with the IPC application dossiers.

II. ORDER FOR CONSIDERING THE GRANTING OF IPCs

1. For IPC application dossiers of enterprises stated in Point 1.2.1, Section I of this Circular, the Ministry of Planning and Investment shall consider them and decide whether or not to grant IPCs or not, after obtaining the written opinions from the Ministry of Finance.

2. For IPC application dossiers of production and business establishments stated in Point 1.2.2, Section I of this Circular, the provincial/municipal Planning and Investment Departments or the provincial-level Board of Management of Industrial Parks shall consider and obtain written opinions from the Taxation Departments and the Development Investment Departments before submitting them to the provincial-level People's Committees for decision whether or not to grant IPCs.

3. For dossiers asking for permission to establish private enterprises and/or companies, which are not engaged in the business lines specified in Point 5 of the Law on Private Enterprises, Article 11 of the Law on Companies, the provincial/municipal Planning and Investment Department or the provincial-level Board of Management of Industrial Parks shall consider and obtain written opinions from the Taxation Departments, the Development Investment Departments and, when necessary, other concerned agencies before submitting them to the presidents of the provincial-level People's Committees for decision whether or not to grant establishment licenses together with IPCs to private enterprises or companies.

4. For business registration dossiers of unions of cooperatives engaged in the business lines not specified in Clause 1, Article 13 of Decree No. 16-CP which are enclosed with IPC application dossiers, the provincial/municipal Planning and Investment Department shall obtain written opinions from the branch-managing provincial/municipal departments, the Taxation Departments and the Development Investment Departments before submitting them to the provincial-level People's Committee for decision whether or not to grant business registration certificates together with IPCs to cooperatives' unions.

5. For IPC application dossiers of investment projects which are associated with the establishment of private enterprises or companies engaged in the business lines specified in Article 5 of the Law on Private Enterprises or Article 11 of the Law on Companies, apart from having to adhere to current provisions on the order and procedures for the establishment of private enterprises or companies, the concerned provincial/municipal Planning and Investment Departments shall have also to obtain written opinions from the Taxation Department and the Development Investment Department before submitting such dossiers to the president of the provincial-level People's Committee for decision whether or not to grant establishment licenses together with IPCs to private enterprises or companies.

6. For IPC application dossiers of investment projects which are enclosed with business registration dossiers of cooperatives or unions of cooperatives engaged in the business lines specified in Clause 1, Article 13 of Decree No. 16-CP, apart from having to adhere to Circular No. 4/BKH-QLKT of March 29, 1997 of the Ministry of Planning and Investment (guiding the transformation and registration of cooperatives and unions of cooperatives according to Decree No. 16-CP), the provincial/municipal Planning and Investment Department or the provincial-level Boards of Management of Industrial Parks shall have to obtain written opinions from the Taxation Departments and the Development Investment Departments before submitting such dossiers to the provincial-level People's Committee for decision whether or not to grant business registration certificates together with IPCs to cooperatives or unions of cooperatives.

7. If production and business establishments stated in Point 1, Section I of this Circular need to register additional business lines, they shall make the registration with the agencies that have granted their business registration certificates or business licenses. For enterprises that have been granted business registration certificates by the provincial/municipal Planning and Investment Departments, if they need to register additional business lines, they can do so while applying for IPCs.

III. TIME LIMIT FOR GRANTING IPCs

1. The granting or non-granting of IPCs in the cases stated in Point 1 and Point 2, Section II of this Circular must be completed within 30 days from the date the dossier-receiving agency receives the valid dossiers.

2. The granting or non-granting of IPCs and permits for the establishment of private enterprises stated in Point 3 and Point 5, Section II of this Circular must be completed within 30 days for cases not involving land lease and within 60 days for cases involving land lease, from the date the dossier-receiving agency receives the valid dossiers. The granting or non-granting of IPCs and permits for the establishment of companies stated in Point 3 and Point 5, Section II of this Circular must be completed within 60 days for both cases involving or not involving land lease from the date the dossier-receiving agency receives the valid dossiers.

3. The granting or non-granting of IPCs and business registration certificates stated in Point 4, Section II of this Circular must be completed within 45 days from the date the dossier-receiving agency receives the valid dossiers.

4. The granting or non-granting of IPCs and business registration certificates for cases stated in Point 6, Section II of this Circular must be completed within 60 days from the date the dossier-receiving agency receives the valid dossiers.

5. A valid dossier is a dossier that contains all elements stated in Point 1.1 or Point 2.1, Section I of this Circular.

An invalid dossier is a dossier that does not contain all elements stated in Point 1.1 or Point 2.1, Section I of this Circular. In cases where a dossier is invalid, the dossier-receiving agency shall, within five days from the date it receives such dossier, have to inform the applying production and business establishment of its request for supplement thereto.

The date of receipt of a valid dossier is the date the dossier-receiving agency receives such dossier if the dossier is brought directly to the dossier-receiving agency or is the date of receipt on the postmark if the dossier is sent by mail.

The time limit for granting or not granting IPCs, permits for the establishment of enterprises and/or business registration certificates is calculated from the date the dossier-receiving agency receives the valid dossiers. In case of non-granting, the dossier-receiving agency shall have to clearly inform the applicant of the reason therefor.

6. The agencies that are consulted by the dossier-receiving agency(ies) about the establishment of enterprises, investment privileges or business registration certificates stated in Section II of this Circular shall have to reply in writing within 10 days from the date they receive written inquiries; past this time limit if they fail to reply they shall be deemed to approve.

IV. HANDLING OF ADDITIONAL CASES

1. Investment projects that are enjoying investment privileges under IPCs granted before the effective date of Decree No. 7/1998/ND-CP shall continue to enjoy such investment privileges till the end of the periods stated in the granted IPCs.

2. Investment projects that are enjoying investment privileges under IPCs granted before the effective date of Decree No. 7/1998/ND-CP, if production and business establishments find themselves eligible for enjoying additional privileges regarding land rent reduction or exemption prescribed in Article 27 and Article 28; import tax privileges prescribed in Article 37; and/or privileges regarding the natural resources tax reduction prescribed in Decree No. 7/1998/ND-CP, they can send a written request to the agencies that have granted IPCs for consideration to grant additional investment privileges or not as prescribed in Article 50 of Decree No. 7/1998/ND-CP.

V. REPORTING ON THE SITUATION OF THE IMPLEMENTATION OF INVESTMENT SUPPORT AND PRIVILEGES

Every six months (on June 20 and December 20), the provincial/municipal Planning and Investment Departments and the provincial-level board of Management of Industrial Parks shall report on the situation of the granting of IPCs, the situation of the implementation of investment support and privileges in the localities, make proposals on matters that need to be addressed and send them to the Ministry of Planning and Investment for summing up and reporting to the Government.

VI. IMPLEMENTATION PROVISIONS

This Circular takes effect 15 days after its signing and replaces Circular No. 6/UB-QLKT of September 27, 1995 of the State Planning Committee defining the order and procedures for granting IPCs in accordance with the Law on Domestic Investment Promotion and Document No. 2367/BKH-QLKT of May 27, 1996 of the Ministry of Planning and Investment guiding the amendments and/or supplements to a number of points in Circular No. 6-UB-QLKT.

Any problems arising in the course of implementation should be promptly reported by the agencies and production and business establishments to the Ministry of Planning and Investment for study and appropriate amendments and/or supplements to the guided contents.

Minister of Planning and Investment

TRAN XUAN GIA